Immigration Law

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NYCLU, June 27, 2018 - "A federal judge today granted a preliminary injunction ending a policy of the Office of Refugee Resettlement (ORR) requiring Trump-apointed director Scott Lloyd to personally review and approve the release of any detained immigrant child who is or has ever been in a heightened supervision placement while in ORR custody. “The court cannot turn a blind eye to plaintiffs’ suffering and irreparable injury,” the court wrote.

In February the NYCLU brought a class action lawsuit over the policy on behalf of immigrant teens detained in New York State, arguing that their release had been significantly delayed under Lloyd’s management, resulting in their unlawful indefinite detention. In April the NYCLU asked the court for a preliminary injunction to ensure that teens be promptly released and reunited with family members.

“Today the court ordered the Trump regime to end the cruel policy that gratuitously prolonged the separation of immigrant children from their families and upended their lives,” said NYCLU Executive Director Donna Lieberman. “ORR can no longer keep children detained at the whim of a director who has demonstrated little expertise and less consideration for the well-being of children.”

The Office of Refugee Resettlement is tasked with protecting immigrant children and placing them with approved sponsors. Yet under the direction of Lloyd, children in New York subject to the policy are now detained on average for over eight months, with the clock still running. Twenty percent have been detained for over a year. The length of detention for all kids in ORR custody, beyond the subset covered by this lawsuit, has also been going up—a trend that will harm the influx of children who entered into the agency’s custody following the implementation of Trump’s “zero tolerance” policy last month.

In a deposition in May, Mr. Lloyd told NYCLU attorneys that he adopted the director-level review policy within hours of becoming ORR director without any analysis or even a count of the children in his custody who would be impacted. He testified that the only documents that he considered before instituting the policy were news reports about criminal activity involving immigrant minors. In granting a preliminary injunction, the U.S. District Judge Paul Crotty observed, “This is at the zenith of impermissible agency actions.”

In granting the NYCLU’s request for a preliminary injunction, Judge Crotty ordered ORR officials to end the director-level review policy.. Judge Crotty also denied the government’s motion to dismiss the lawsuit and granted the NYCLU’s request for class action status. The number of children who would be covered by the class includes several dozen children in New York. Across the U.S., over 700 children have been subject to the Lloyd-review policy that the court struck down.

“As this ruling makes clear, the Trump administration is separating immigrant families in more ways than one,” said NYCLU Staff Attorney Paige Austin. “We hope that today’s decision will help children get out of custody faster and eliminate one tool that this administration has used to further traumatize the children in its care.”

In the year since Mr. Lloyd has been at the helm of ORR, only 12 percent of the more than 700 children nationally who were subject to the policy requiring director-level approval were released to adult sponsors. This stands in stark contrast to the over 90 percent of all children in ORR custody released within 35 to 45 days in previous years. Mr. Lloyd has claimed that the policy of reviewing the cases of immigrant children who have been in heightened supervision placements is intended to assess their “dangerousness.” Yet, ORR already has thorough processes in place to evaluate both children and proposed family sponsors.

Half the children in the plaintiff class in New York, including the lead plaintiff at the time of filing, LVM, are no longer in heightened supervision placements — meaning the agency has concluded they pose no danger to anyone. LVM was initially placed in a higher security facility due to unfounded accusations of gang membership, but his case workers soon concluded he should be returned to his mother’s care, and an immigration judge ruled he posed no danger. Nonetheless, LVM remained in custody for nearly eight months, until NYCLU filed suit.

“Kids like me have to wait too long to get out and be with their families. Being detained for this long made me feel desperate. It’s especially hard when we keep getting told we’re getting out, and then being disappointed when it doesn’t happen,” said LVM in a court filing.

The lawsuit makes clear that delays and ongoing detention of these immigrant children have subjected these young people to further harm and trauma. A psychiatrist reviewing many of the teens’ case files found every one of them had a significant trauma history. One child who was referred for release by caseworkers attempted to commit suicide and was hospitalized while awaiting the director’s decision. Another who was recommended for release by social workers and awaiting an overdue release decision by the director was subject to sexual abuse by a staff member at the facility where he was detained.

“The government is obligated by law to reunite immigrant children in their custody with family sponsors as promptly as possible,” said Aadhithi Padmanabhan, NYCLU staff attorney. “This ruling makes clear that the obstacles created by the Office of Refugee Resettlement to the speedy release of this group of children are unacceptable, and we will continue fighting to ensure that reunification can happen as quickly as possible.”